Tuesday, December 15, 2015

Military nexus and the right to a jury trial

In
R. v.
Moriarity, 2015 SCC 55 the Supreme
Court of Canada ruled at paragraph 54 of its reasons for judgment that criminal
conduct by members of the military is at least rationally connected to maintaining
the discipline, efficiency and morale of the armed forces even when they are
not on duty, in uniform or on a military base.

The
Court went further and adopted the US status test: soldiers are soldiers
24 h/day, 7 days/week, 365 days/year and 366 days/on a leap year wherever they are,
whatever they do and whenever they do it.

However
the issue of the accused’s entrenched constitutional right to a jury trial was
not before the Supreme Court. The issue arises under s.11(f) of the Canadian
Charter of rights and Freedoms (Charter) which creates an exception to that
constitutional right for those tried by a military tribunal. That the Supreme
Court did not adjudicate on the question appears from this paragraph of the
Court’s reasons for judgment:

[30] The overbreadth analysis does not evaluate the
appropriateness of the objective. Rather, it assumes a legislative objective
that is appropriate and lawful. I underline this point here because the
question of the scope of Parliament’s authority to legislate in relation
to“Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution
Act, 1867 and the scope of the exemption of military law from the right to a jury
trial guaranteed by s. 11 (f) of the Charter
are
not before us in these appeals. We are concerned here with articulating the purpose
of two challenged provisions in order to assess the rationality of some of
their effects. We are not asked to determine the scope of federal legislative
power in relation to the military justice or to consider other types of Charter
challenges. We
take the legislative objective at face value and as valid and nothing in my
reasons should be taken as addressing any of those other matters. [Emphasis
added]

Since
the enactment of the Charter in 1982, the Court Martial Appeal Court of Canada
(CMAC) consistently required the existence of a military nexus to maintain the
constitutional validity of s.130(1)(a) of the National Defence Act and trigger the 11(f) exception to the right
to a jury trial. It should be recalled that s.130(1)(a) is the provision which
transforms all ordinary criminal law offences into service offences. This
requirement was applied by the CMAC in R.v. Moriarity,
2014 CMAC 1, R. v. Larouche, 2014 CMAC 6.

Indeed
in Larouche the CMAC followed its earlier
decision in Moriarity and endorsed the decision of Chief Justice
Mahoney rendered some 30 years ago in the following terms:

[14] Like him, I am of
the view that the constitutionality of paragraph 130(1)(a) cannot be preserved
unless it is interpreted as it was done by Chief Justice Mahoney in MacDonald
v. R. over
thirty years ago:

An offence that has a real military nexus and falls within
the letter of subsection 120(1) [now subsection 130(1)] of the National
Defence Act is an offence under military law as that term is used in paragraph 11(f) of the Charter of
Rights. (emphasis added)

Thus the CMAC decision as it relates to the requirement of a
military nexus for the section 11(f) exception to apply and deprive an accused
of the right to a trial by jury still stands but now has to be read in light of
the decision of the Supreme Court of Canada in Moriarity.

So
in the pending case of Master Corporal
D.D. Royes v. Her Majesty The Queen, CMAC-568, counsel for the applicant
filed with the CMAC a motion dated December 4th 2015 to be
authorized to present written submissions to the Court pursuant to the meaning
given by the Supreme Court to the concept of military nexus.

It
is the applicant’s contention that, as a result of the decision of the Supreme
Court in Moriarity, military nexus
can no longer be used to justify the exception to s.11(f) of the Charter, in
other words to deprive him of his constitutional right to a trial by a jury.
Consequently he seeks from the CMAC as an appropriate remedy a declaration that
s.130(1)(a) is invalid, thereby leaving it to Parliament to play its
legislative role.

1 comment:

A razor-sharp analysis by the Hon. Létourneau. Moriarity is but the beginning of a new saga whose purpose is to ensure that our soldiers (sailors and airpersons) can exercise their constitutional rights as much as any other Canadian citizen, permanent resident in Canada, or any other individual who just set foot in our land (i.e. a refugee).